Ethics concerns in Pinal death-penalty cases

"It's a bit mind-boggling," said former Maricopa County Attorney Rick Romley, who served as lead prosecutor for more than 16 years. "There are serious problems in the Pinal County Attorney's Office."(Photo: Getty Images)

When a judge declared a mistrial in a Pinal County murder case last week due to the actions of county prosecutors, it marked the third time in a month that ethics concerns were raised about the handling of death-penalty murder cases by the Pinal County Attorney's Office.

Superior Court Judge Boyd Johnson declared a mistrial after learning that prosecutors misled him by secretly interviewing, without an attorney present, a defense witness who was facing charges in another case.

The miscued murder case came days after the State Bar of Arizona opened an inquiry into how and why Pinal County prosecutors ignored a court order by viewing sealed documents in another death-penalty case.

And aday after the mistrial, prosecutors disclosed that a paralegal in the office "inadvertently" accessed off-limits documents in a third death-penalty case.

Court officials and representatives of the County Attorney's Office blame the misstepson a flawed case-management system, inadequate training and misguided judges.

"We will continue to prosecute in an ethical manner and allow the public to form its own opinion," County Attorney Lando Voyles said in a prepared statement. "When the courts have finally spoken, I believe the image of the Pinal County Attorney's Office will vindicate the confidence the public continually expresses to me."

Observers and critics of the Pinal County prosecutors office say the ethical judgments of top attorneys there are alarming.

"It's a bit mind-boggling," said former Maricopa County Attorney Rick Romley, who served as lead prosecutor for more than 16 years. "There are serious problems in the Pinal County Attorney's Office."

Those problems showed up in the murder trial of Ronald James Thompson on July 24.

As the trial was resuming, Deputy County Attorney Matthew Long asked to approach the bench and told Johnson he needed to excuse himself to deal with "administrative matters," according to court transcripts.

But the transcripts show he intercepted a witness for the defense, ushered him into a room and interviewed him for about 15 minutes without an attorney present. It turned out that the witness was facing charges in Pinal County himself, and when that came up, Long offered to bring in his attorney.

Defense attorney Eric Kessler got wind of the meeting, told the court and asked for the case to be thrown out or, at a minimum, be declared a mistrial. In an immediate side hearing, Kessler argued that prosecutors lied to the judge about their intentions and intimidated a witness.

The witness testified at that hearing that the encounter made him nervous because of the other unrelated charges against him. He told the judge he was afraid of going to prison labeled as a snitch. Kessler pointed out that "this is a scared man, and he wasn't scared a week ago."

Prosecutor David Powell told the court his office had every right to interview the witness.

Johnson didn't feel lied to, but noted, "Was I personally misled? Probably. I probably thought he was going to the office to take care of business and not to interview a witness."

Johnson reasoned that no rules of conduct were broken, but he said he was concerned about the effect of the encounter on the witness.

"I don't think it was done in any unethical or illegal manner," he said, but, "there can be no other conclusion than (the witness) feeling the need to cooperate with the state, perhaps, and feeling that he has to tailor his testimony."

He reasoned that the encounter created a conflict of interest requiring a mistrial because the interview could have influenced the witness.

"Nothing illegal or unethical was done in violation of a rule by the state, as noted by the judge, and PCAO looks forward to bringing justice to the victim's family," said Jim Knupp, a county attorney spokesman.

The mistrial came less than a month after visiting Judge Peter Cahill disqualified the Pinal County Attorney's Office from trying a separate murder case.

Cahill determined July 7 that several top county lawyers accessed, read and distributed off-limits documents marked "sealed," deliberately violating a court order. He ruled that they acted above the law. The order singled out Voyles, Long, Deputy County Attorney Richard Wintory and former county prosecutor Greg Hazard.

On July 23, Voyles asked county supervisors permission to hire a lawyer to defend himself and his staff as the state Bar looks into allegations stemming from the2013 murder case, which involvesdefendant Richard Wilson.

"I disagree with the court's order and the far-reaching conclusions contained therein," Voyles wrote supervisors. "I assure you that I and my lawyers do not 'set themselves above the law,' as claimed in Judge Cahill's order."

Cahill, in his July 7 ruling that disqualified prosecutors from the murder case, flagged statements they made in a special hearing. Specifically, Hazard testified that the ruling to seal records was a "bad call" and that if a paralegal opened such a file under the same circumstances, he'd handle it the same way as in the Wilson case.

After the ruling, Pinal County Clerk of the Superior Court Chad Roche issued his own statement: "The security of court records is an absolute non-negotiable," adding, "This was an issue of a department seeing something they should not have been able to see, and we are fixing it."

Later, he said in interviews that problems with the court's case-management system had been resolved. In a July 16 candidate forum, Roche, who is running for re-election, said "documents today are extremely secure, more secure than they've ever been."

But on July 25, Voyles andWintory disclosed in court that their paralegal had accessedsealed records in a death-penalty murder case against Jose Luis Martinez. In that disclosure, paralegal David Tascoe signed a sworn statement describing an almost identical series of events paralegal Tari Parish had performed a year before in the Wilson murder case.

Tascoe explained how when checking the county's case-management system to keep case files in the Martinez prosecution current, he came across an entry for a document described as "Miscellaneous: Sealed Document," he wrote.

"It appeared that anyone could access this document," he wrote, "so in an abundance of caution and without attempting to access the document, I took a picture of the screen and I immediately notified Deputy County attorney Susan Eazer."

Eazer directed him to look at an entry in an aggravated-assault case involving the same defendant, which the office "knew to be sealed and inaccessible," Tascoe wrote. In the assault case, there was a red flag next to the docket entry, indicating it was sealed, but when Tascoe went back to the filing in the murder case, there was no red flag.

He later opened a document identified as an order in the murder case, which was labeled in the comment section of the docket as "ex parte," indicating it was in confidence between one party and the judge. He opened it, saw "filed under seal" was noted on the document and, he wrote, "immediately closed the document without reading anything else."

Roche said that prosecutors' description of events is inaccurate and that no sealed records were ever accessed.

He added that there is confusion in the courts about what constitutes a sealed record and that he and the presiding judge in Pinal County are clarifying the matter.

Due to how the computerized document-management software was set up, Roche said he inherited a system that allowed either all-or-nothing access to sealed records. A year ago, he opted to set up county prosecutors with a terminal that granted universal access, trusting them to follow the rules. After the 2013 incident, he switched it to zero access and now requires prosecutors to get a judge's order to access sealed files.

"There have been a lot of misperceptions about this. The bottom line is the public's records are secure," Roche said. He said the documented problems are a result of differing interpretations of how documents are sealed in the Digital Age.

Romley said, "They need to understand what a sealed document is. It's sealed from everybody. It sounds like they have a system that is not adequate."

Former Pinal County Attorney Jim Walsh, who lost re-election to Voyles, said he has never seen prosecutors open files ordered sealed by the court.

Had such files been improperly accessed under his watch, Walsh said, he would have ordered a thorough internal investigation and would have "disclosed it to the court and disclosed it to the other side, automatically."

That did happen on July 25in the Martinez case,but not a year ago. The unauthorized access to records in 2013 was discoveredonly when defense attorney Bret Huggins read a prosecutors' motion, he said. The state Bar was alerted after the judge's ruling to disqualify prosecutors in the Wilson case on July 7.

Walsh saw some significance in the different approach between how the Pinal County Attorney's Office handled the two incidents.

"Somebody felt somebody was looking over his shoulder this time," Walsh said.

Knupp, the Pinal County attorney spokesman, said the department is reviewing legal options on the Wilson case and since that incident has "trained our staff on what steps to take when encountering a document ordered 'sealed,' which was not properly sealed."

"PCAO will continue to notice the court of this access and the failure of the clerk to uphold the (state's) rules," Knupp added.

Sheriff Babeu cleared: Federal investigators clear Pinal County Sheriff Paul Babeu of any wrongdoing during the 2012 election and have closed the case. A12